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Air France Internal Investigation Ordered Released
Published in the February 2010 issue of Transportation Notes - View Article
The recent ruling in Société Air France v. Greater Toronto Airports Authority by a Master of the Ontario Superior Court raises interesting issues with respect to the disclosure of information in the course of litigation over an airline accident. The ruling requires significant disclosure of information such as accident investigation reports and medical records of pilots, despite claims of privilege. This ruling should give pause to any airline considering or engaged in accident-related litigation in Canada, although it is under appeal.
The issues arose in the discovery process in a claim launched by Air France against NAV CANADA, the Greater Toronto Airports Authority (“GTAA”) and the Attorney General of Canada. The case is one in a series of legal disputes arising out of an accident where an Air France aircraft slid off the runway upon landing in Toronto in rainy weather. A number of cases were launched as a result of the incident: by the passengers, by the GTAA, and also, in the case at issue in this article, by Air France for the value of the aircraft hull and for contribution and indemnity in respect of any claims paid by Air France arising out of the incident.
The standard by which a court in Ontario determines whether certain documentation is to be produced in a discovery, which has recently changed as a result of significant amendments to the Rules of Civil Procedure, is whether the information has “some semblance of relevance to the matters in issue as delineated by the pleadings.”
The information claimed by NAV CANADA, and of which Air France resisted producing, was comprised of: (i) full and complete employee and training records of the Captain and First Officer; (ii) full and complete medical records of the Captain and the First Officer; (iii) the Air France internal investigation report pertaining to the incident and all documents pertaining to or flowing from the Air France internal investigation; (iv) a better representative for the examination for discovery. With some limited exceptions, the Master granted the production sought.
With respect to employment information, Air France had produced some documentation including a two-page printout of the pilot proficiency chart. NAV CANADA, however, sought further information which, Air France’s representative had indicated during oral discovery, would normally be present in a professional file such as reports completed following a training session or a check ride. The Master agreed that such documents were relevant as “the pleadings clearly put into issue the proficiency and training of the flight crew in landing the A340 aircraft in adverse weather conditions.” As such, Air France was required to disclose complete files in relation to “line check reports, simulator reports, recurrent training reports, dangerous goods and LOFT reports.” However, administrative information such as banking records, would not be relevant and therefore, not producible.
The disputed disclosure of medical records raised an interesting conflict of laws issue. The issue in this respect was whether the Captain was suffering from fatigue. The requirements of a Canadian Foreign Air Operator Certificate, as set out in the Canadian Aviation Regulations, include the prohibition of a flight crew member operating an aircraft if there is reason to believe that the person is suffering from or likely to suffer from fatigue. At discovery, the Air France representative confirmed that French law requires a pilot to submit to a medical examination every six months, and that records exist in relation to these examinations. However, Air France took the position that disclosure of medical information was contrary to French privacy laws, and that the existing disclosure of the medical certificates themselves issued for the First Captain and Officer was sufficient.
The Master disagreed with this argument. First, the Master held that, as the action was commenced in Ontario, Ontario law prevailed. Further, an agreement had already been made as to the confidentiality of information, and the deemed undertaking rule would also apply to the disclosure. Moreover, as had been done in the related passenger class action which involved a number of French passengers, a French citizen could consent to the information being disclosed.
The Master ultimately ordered disclosure of the medical records, but only of the Captain. It was only with respect to the Captain that evidence already existed suggesting that fatigue was an issue: it was known that he was on a reduced work schedule due to fatigue and was restricted by his French medical certification to only fly in certain areas. There was no such evidence pertaining to the First Officer. The Master held that to allow disclosure of his medical records would amount to a “fishing expedition.”
Finally, with respect to the investigation information, a domestic clash of laws arose. In accordance with the Canadian Transportation Accident Investigation and Safety Board Act (“the Act”), an investigation was conducted by the Transportation Safety Board (“TSB”) in which a great deal of information passed between Air France’s Bureau d’Enquetes et d’Analyses and the TSB. NAV CANADA sought disclosure of all such information exchanged. In response, Air France relied on privilege as provided by the Act. The Act protects statements and their authors, cockpit voice recorders and communications respecting air traffic control. Air France also relied on the doctrine of privilege at common law.
However, the Master was not persuaded that the information was privileged. With respect to the Act, the master held that it did not prevent disclosure of Air France’s own internal investigation. Further, the Act authorized Air France to allow the TSB to disclose statements made during an investigation. Another significant factor considered by the Master is that information pertaining to accident investigation is disseminated internally by Air France – first, to a more limited pool of people in order to conduct an analysis of “lessons learned” and further, to pilots, who are the recipients of these lessons. Analyses of risk are also ultimately incorporated into Air France training manuals. The Master found that the dissemination of information to the analyst group alone would amount to a waiver of the privilege.
The Master ordered therefore that Air France’s internal investigation was to be produced. However, further information sought by NAV CANADA with respect to all other Air France accidents was to be produced only in the form in which it was communicated to the pilots, and only to the extent to which it resulted in changes to the manuals.
This decision demonstrates that, in accordance with the Ontario Rules of Civil Procedure, significant disclosure will be required in litigation involving an aircraft accident. Even information which may otherwise be considered privileged or private, such as investigation reports and medical records, may be required if put at issue in the pleadings. An airline seeking protection of such information is well advised to consider taking measures, such as, in this case, a confidentiality agreement, or the resolution of disputes outside of the traditional court process.
Société Air France v. Greater Toronto Airports Authority, 2010 ONSC 432